Judgment:
M.B. Shah, J.
1. The assessee is an individual earning his income from truck plying. He filed his return on November 17, 1971, for the assessment year 1971-72. It is not disputed before us that the said return cannot be considered to have been filed under section 139(1) of the Income-tax Act, 1961 ('the Act', for short). It is considered to be a return filed under section 139(4) of the Act, as it was not filed within the time allowed. The assessee filed a revised return on March 5, 1974, showing the additional income by disclosing the fact that during the relevant period he had sold his truck. The Income-tax Officer passed an order on February 7, 1975, and that order was challenged by the assessee before the Appellate Assistant Commissioner of Income-tax. Before the appellate authority, it was contended that the order passed by the Income-tax Officer was beyond the prescribed time. The appellate authority rejected the said contention. Aggrieved by the said order of the appellate authority, the assessee preferred an appeal before the Income-tax Appellate Tribunal. The Tribunal also rejected the said contention.
2. Thereafter, at the instance of the assessee, the following question is referred for the opinion of this court under section 256(1) of the Act :
'Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the revised return filed by the assessee on March 5, 1974, was a valid return?'
3. At the time of hearing of this matter, learned counsel for the assessee submitted that the Appellate Tribunal was not justified in holding that the revised return filed by the assessee on March 5, 1974, was a valid return which would extend the period of limitation prescribed for passing an order on the basis of section 153(1)(c) of the Act. It is his contention that the return under section 139(4) of the Act was already filed on November 17, 1971, and the assessee was not entitled to file a revised return under section 139(5) of the Act. He further relied upon Instruction No. 888 issued by the Central Board of Direct Taxes dated October 1, 1975, which, inter alia, provides as under :
'These questions were referred to the Ministry of Law for advice. According to the Ministry of Law, a person who has not filed a return of income within the time allowed to him under sub-section (1) or sub-section (2) of section 139 of the Act, but files a return of income under section 139(4) is not entitled to file a revised return under section 139(5) of the Act. The Law Ministry has further advised that such a return of income cannot also be taken into consideration for the purposes of computing the period of limitation under section 153(1)(c) of the Act. It may, therefore, be noted that the extended time-limit of one year under section 153(1)(c) will not be available in respect of a revised return of income purported to have been filed under section 139(5) where originally the return was filed under section 139(4).'
4. He submitted that the aforesaid instruction issued by the Central Board of Direct Taxes is binding on the Income-tax Officer and, therefore, the assessment order passed by the Income-tax Officer on February 7, 1975, was beyond the time-limit, as it was not passed within the period of two years from the end of the assessment year in question.
5. As against this, Mr. Shelat, learned counsel appearing for the Revenue, vehemently submitted that the aforesaid instruction was not at all pointed out to the authorities below and, therefore, it should be ignored by this court. He also submitted that there is no prohibition under sub-section (4) of section 139 to the effect that the assessee cannot file a second or revised return after submitting the first return. That is to say, there is no prohibition on submitting successive returns under section 139(4) of the Act. Therefore, the assessment order passed by the Income-tax Officer is within time from the date of submission of the subsequent return filed by the assessee under section 139(4) of the Act. For this purpose, he relied on the decision of the Madhya Pradesh High Court in the case of CIT v. Dr. N. Shrivastava : [1988]170ITR556(MP) .
6. In the case of Dr. N. Shrivastava : [1988]170ITR556(MP) the Madhya Pradesh High Court has considered various judgments on this point and held that since a return under sub-section (4) of section 139 of the Act is a voluntary return, the view that within the period of limitation prescribed for the purpose, successive returns can be filed, seems to be the correct view. The court has further held that subsequent return or returns under section 139(4) are permissible provided they are filed within the period of limitation and in the case of a subsequent or a revised return being filed, the earlier return gets substituted by the subsequent or revised return and it is the subsequent or the revised return which has to be taken into consideration for the purposes of assessment and computation of the period of limitation. The starting point of limitation with regard to a return filed under section 139(4) of the Act would be the date of the filing of the return and if subsequently return or returns have been filed, the date of the filing of the last of such of the returns (provided the same had been filed within the period of limitation). We prima facie agree with the aforesaid view expressed by the Madhya Pradesh High Court, but, at the same time, in this case, in our view, it would not be necessary to decide the aforesaid question because of the instruction issued by the Central Board of Direct Taxes upon which learned counsel for the assessee places reliance. Since the effect of the aforesaid instruction has not been considered by the Tribunal, because it was not cited before the Tribunal or the authorities below, it would be just and proper not to express any final opinion on the question referred to us by the Tribunal. It would be for the Tribunal to decide the matter afresh in the light of the Instruction No. 888 issued by the Central Board of Direct Taxes and in accordance with law.
7. In the result, the question is left unanswered. The reference stands disposed of accordingly with no order as to costs.